MZWWP v Minister for Immigration
[2006] FMCA 105
•2 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWWP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 105 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant could not marry in Israel – marriage abroad recognised in Israel –not a ground for persecution. MIGRATION – Delay in applying for protection visa – failure of the Tribunal to consider relevant factors in assessing the delay. MIGRATION – Protection visa – bipartite approach – Tribunal required to consider the subjective and objective fear of the Applicant as required by Article 1a(2). |
| Migration Regulations 1994, reg 010.611(2) |
| Chen Shi Hai v Minister [2000] HCA 19; (2000) 201 CLR 293 Gomez v Minister for Immigration & Ethnic Affairs [2002] FCFCA 105 Minister for Immigration & Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Immigration & Ethnic Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 Minister for Immigration & Ethnic Affairs, Re; Ex parte: Miah [2001] HCA 22; (2001) 206 CLR 57 Minister for Immigration & Ethnic Affairs v Respondents S152/03 [2004] HCA 18; (2004) 205 ALR 487 Selvadurai v The Minister (1994) 34 ALD 347 Thuraisamy v Minister for Immigration & Ethnic Affairs [1999] FCA 1632 |
| Applicant: | MZWWP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 192 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 November 2005 |
| Date of Last Submission: | 4 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | MSC Legal Services |
| Counsel for the Respondents: | Mr Felman |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application filed on 16 March 2005 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 192 of 2005
| MZWWP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL & ANOR |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Israel. He is of Russian ethnicity. The applicant arrived in Australia on 30 October 2003.
By December 2003 the applicant had lodged an application for a protection visa with the Minister. On 7 May 2004 a delegate of the minister refused the application for a protection visa.
On 31 May 2004 the applicant applied for a review of the delegate's decision. This was heard by a member of the Refugee Review Tribunal who refused the application on 30 December 2004, affirming the decision of the delegate.
The applicant then commenced proceedings in the Federal Magistrates Court on 18 February 2005 seeking judicial review of the decision. On 16 March 2005 a Registrar made directions and set the matter down for hearing on 14 September 2005. As a result of the unavailability of counsel on that date the matter was administratively adjourned to 4 November 2005 when it was heard.
Background
The applicant advised the Tribunal that he lived in Israel for seven years from 7 July 1996 to 30 October 2003. He had left Israel on a number of occasions, travelling to the Ukraine twice and travelling to Germany once on a business trip. The applicant explained that he was allowed to migrate to Israel from Russia as his maternal grandfather was Jewish, although he did not consider himself to be Jewish.
In his application the applicant set out that he worked as a third captain on a marine vessel from 1995 to 1997 and as a technical manager and subsequently a computer purchasing manager at two different companies between 1999 and 2002.
The applicant's case was poorly particularised when he made his initial application, stating simply that he left Israel because Russians are a minority group that are treated differently and that he believed he would not be given equal opportunity if he returned to Israel. He said that authorities could not protect him from this discrimination because:
Jewish people come first. Justice is first served to the Jewish people, then the remaining people. It is a one-way street.
In the decision of the Tribunal member the applicant's claims are recounted as follows:
a)That he was not given equivalent employment opportunities in Israel as he was not Jewish, nor paid as well as Jewish employees (receiving a salary similar to that paid to Palestinians);
b)He stated that he could not marry an Israeli as he was not Jewish;
c)The applicant said that as he was not Jewish he would not be buried in a state cemetery;
d)The applicant said that there is a war in Israel every day and that because he is not Jewish he feels he would not receive the same protection as a Jewish citizen;
e)The applicant said he had never been assaulted in Israel, but stated that on one occasion in 2001 he was verbally abused.
The Tribunal had regard to the independent country information it had obtained from the US Department of State Reports.
Following the hearing the applicant provided additional information to the Tribunal with respect to the state of war in Israel and with respect to marriage.
Ground 1(i)
In support of this part of the ground the applicant refers to the tribunal’s findings that he could lawfully marry in Israel. The relevant passage of the decision is as follows:
The applicant also claimed that he cannot get married in Israel. At the hearing, the applicant initially stated that he was married in Israel to a Jewish woman. Subsequently, he changed his mind and said he was not married but was living in a relationship akin to a de-facto marriage. The applicant essentially said “it depends on how you look at it”. Given the inconsistency and the vagueness of the applicant’s evidence, the Tribunal cannot determine the applicant’s marital status in Israel. The applicant provided material subsequent to the hearing, namely, “RELIGION AND POLITICS IN ISRAEL” (Folios 28-39) which in some ways does not support his claim that he cannot get married in Israel. Whilst the document highlights some problems, it does indeed refer to “alternate ways of marriage” including marriage abroad, marriage assisted by agent, consular marriages and living in a de-facto relationship. The US Department of State Report cited to this Decision notes “…The Government interfered with individual privacy in some instances. The Government interfered with an individual’s ability to marry within the country by not recognising Jewish marriages other than those performed by the Orthodox Jewish establishment and by prohibiting civil marriages…”. On the basis of the available information, the Tribunal accepts as being plausible that the applicant would encounter difficulties if he wanted to marry in Israel, however, the Tribunal rejects the applicant’s claim that he cannot marry in Israel as the document provided by the applicant clearly makes reference to other lawful means of marriage. In any case, the Tribunal is not satisfied that any such difficulties would amount to persecution as contemplated by the Convention.
The document that the tribunal is referring to in this paragraph is a translation of an article ‘Religion and Politics in Israel’ (originally published in Russian). The article does not refer to ‘other lawful means of marriage’, rather alternative methods: primarily marrying abroad. In this regard it is argued that the tribunal has erred.
However, marriages abroad are recognised. They are not unlawful. The applicant has travelled outside of Israel on a number of occasions.
I am not satisfied that the tribunal was referring to marriages within Israel, rather than the ability for a non-Jewish Israeli to marry and have that union recognised in Israel.
I therefore refuse this ground of review.
Ground 1(ii)
This part of the ground relates to the finding that the applicant delayed in lodging his application for a protection visa, leading to a finding that the tribunal was not satisfied that the applicant had a genuine fear of persecution. The Tribunal stated:
At the hearing, the Tribunal noted that the applicant had arrived in Australia on the 30th October 2003 and that he had lodged his application for a protection visa on 8th December 2003. The Tribunal asked the applicant to explain the delay in lodging his application for a protection visa and indicated that delay is a matter that can be taken into consideration by the Tribunal when assessing the genuineness of his fear of prosecution. The applicant told the Tribunal that he came to Australia as a tourist and initially did not consider applying for a protection visa. He said that subsequently he consulted a migration agent who discussed with him a protection visa application on grounds of discrimination. Looking at the evidence as a whole, the Tribunal is not satisfied that the applicant has a genuine fear of persecution. His explanation that until he consulted a migration agent, he was not aware that he has the right to apply for a protection visa is unpersuasive.
It appears that this finding was based upon an exchange between the applicant and the Tribunal member as follows:
MS YOUNES: Why did it take you about three months to apply for a protection visa?
INTERPRETER Actually it seems to me it wasn’t three months, it was 38 days it seems.
MS YOUNES: October – yes, you’re right. Why did it take you say about six weeks – I think that’s a fair estimate. Why did it take you about six weeks to apply for a protection visa? Mr Kuklin, I do not understand Russian, and you need to give the interpreter time to interpret me.
INTERPRETER: Shall I speak English?
APPLICANT: Can I speak to my sentence?
MS YOUNES: Yes. If you could please – if it’s possible for you to speak in short sentences so they can be - - -
APPLICANT: Okay.
MS YOUNES: So they can be interpreted to me, and could I please ask both of you not to interrupt me when I’m talking.
INTERPRETER: Okay.
MS YOUNES: Please wait until I finish my sentence. Thank you. That goes to both people. Thank you.
INTERPRETER: Okay. He understands.
MS YOUNES: All right.
INTERPRETER: Shall I interpret from the very beginning?
MS YOUNES: It might help, thank you.
INTERPRETER: I came to Australia as a tourist, and initially I wasn’t going to apply for refugee status, and I found myself in the situation, it was a kind of private conversation, and we were talking about the protection that you can get in Australia if you are discriminated because of your race. You know, after that, I started looking for some help from the migration agent, and I turned not to one agent, to a few of them just to clarify the situation, and this private conversation, it took place not on the first day of my arrival. That’s why it took me some time, because I had to collect all the necessary documents, all the necessary papers to be able to apply for the protection visa.
MS YOUNES: I need to let you know that delay in lodging a protection visa is one of the matters that can be taken into consideration by the tribunal in assessing the genuineness of your fear of persecution.
INTERPRETER: Yes, I just, you know, actually I was able to fit in 45 days time. I was able to do during the allowed period of time, but what I can do if the tribunal consider it as a delay? What can I do in this respect?
MS YOUNES: I’m sorry, I don’t understand your answer. Perhaps you could clarify it to me.
INTERPRETER: You know, just when I turned to the migration agent, he told me that I had 45 days, and during this period, I can apply for the protection in Australia, but I would like to underline again that I wasn’t aware that I had such kind of right to apply for the protection in Australia.
Delay is a factor that can be legitimately considered by the tribunal in assessing whether the applicant has a genuine fear of persecution. In Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20 Kirby J said:
The delegate was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. As I read the delegate's reasons, apart from other considerations she was unconvinced that the applicant had manifested the element of fear which is part of the definition. Having regard to the somewhat dilatory way in which the applicant asserted that fear, at the very end of a one-year stay on a visitor's visa with her family, this was a conclusion that was open to the delegate in the circumstances.
In Selvadurai v Minister for Immigration (1994) 34 ALD 347 Heerey J considered a case involving a delay of 20 months, stating that the delay was:
…a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution. (at 349)
The Tribunal member does not appear to have understood reference to 45 days in the context of the regulations. It is apparent that this was a reference to the 45-day time limit in regulation 010.611(2). This regulation provides that condition 8101 (a no-work condition) will attach to bridging visas associated with protection visa applications where the applicant has spent 45 days or more in Australia in the 12 months prior to the date of the application.
The regulations do not govern the considerations of the tribunal when considering delay. The relevance of delay is an evidentiary matter relating to the veracity of the claim, and thus solely within the province of the tribunal. However, the tribunal must consider the relevant factors in assessing the delay. It is an error in logic to equate delay, per se, as necessarily showing that the applicant does not have a subjective fear. It must identify whether in the particular facts and circumstances the delay identified shows a lack of subjective fear.
The most relevant factor in explaining the delay in this case was the terms of the regulation, which provided a cogent and compelling explanation for the limited time the applicant took to apply for a protection visa in the context of this particular case.
Having regard to the terms of the decision and the transcript, it appears clear that the tribunal member could not have had regard to the provisions of this regulation in forming its views. Once one has regard to the terms of the regulation, and that the applicant was aware of it (albeit in general terms) it is difficult to see that there is delay that is of any significance in this case.
I therefore find that the failure of the tribunal to have regard to this significant and relevant factor is an error on the part of the tribunal in this case.
Bipartite test
The alternative basis upon which the applicant argued this ground was that the tribunal erred in applying the bipartite test requiring both a subjective and objective finding of ‘fear’ as required by Article 1a(2) of the convention.
Article 1A(2) defines a refugee as any person who:
Owing to a well-found fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing too such fear, is unwilling to return to it.
The issue has been the subject of a lengthy article by Hathaway and another, "Is there a subjective element in the Refugees Convention's requirement of well-founded fear?" (2005) 26 Michigan Journal of International Law 505 where the authors state:
It is quite difficult to discern how evidence of delay logically relates to the presence or absence of subjective fear.
This academic view of delay is contrary to the law in Australia. Whilst in many cases delay appears to be of no real weight in the context of the facts and circumstances, it appears to me that delay must logically point to an absence of ‘fear’ in a convention sense, in at least some cases.
The applicant also relied upon the more general thesis of the authors that there should only be an objective test. In this regard comments made by Raphael FM in SZBOO v the Minister [2005] FMCA 1010 at 11 and 12 were relied upon. His Honour said:
[11] The next heading is described as:
“Membership of TKeM, past incidences of persecution and subjective fear.
[12] The Tribunal accepts that membership of TKeM constitutes a particular social group under the convention. The Tribunal accepts the three incidents that occurred to the applicant in his car and at his home when shots were fired at him; in one case his friend was killed and the driver was injured. But it comes to certain findings regarding his subjective fear based upon the applicant’s failure to apply for asylum in other countries at an earlier time. This could really only be relevant to the two incidents which occurred before the August 2001 incident as he did not travel to any country other than Australia thereafter. Although it was not argued by counsel for the Minister that lack of subjective fear was an independent and supportable ground for the Tribunal’s affirmation of the decision of the delegate it is well to take notice of the views promulgated by Professor Hathaway in his article “Is there a Subjective Element in the Refugee Convention’s Requirement of “Well-Founded Fear” Michigan Journal of International Law Vol. 26:505 Winter 2005 where the learned author says:
“Beyond vague references to the subjective quality of “fear”, few courts or commentators have undertaken the task of explaining what justifies recognition of a subjective element in the first place. What, in the end, does subjective fear or trepidation have to do with the goals of refugee law? Reasoned explanations are in short supply. This shortfall in critical thinking has greatly complicated efforts to formulate a coherent understanding of the subjective element, and clearly to articulate its role in the analysis of well-founded fear. …
In contrast to prevailing views, we have taken the position that there is no subjective element in the well-founded fear standard. The Convention definition’s reference to “fear” was intended simply to mandate an individuated, forward-looking appraisal of actual risk, “not to require an examination of the emotional reaction of the claimant.” Rather than predicating access to protection on the existence of “fear” in the sense of trepidation, the Convention refugee definition requires only the demonstration of “fear” in the sense of a forward-looking expectation of risk. Once fear so conceived is voiced by the act of seeking protection, it falls to the state party assessing refugee status to determine whether that expectation is borne out by the actual circumstances of the case. If it is, the applicant’s fear (that is, his or her expectation) of being persecuted should be adjudged well-founded. Grahl-Madsen rightly observed that “every person claiming … to be a refugee has “fear” (‘well-founded’ or otherwise) of being persecuted… irrespective of whether he jitters at the very thought of his return to his home country, is prepared to brave all hazards, or is simply apathetic or even unconscious of the possible dangers.
This understanding of “fear” as forward-looking expectation of risk is fully justified by one of its plain meanings. While “fear” is most commonly understood in the sense of trepidation, the term may also be defined as “a particular apprehension of some future evil … an apprehensive feeling towards anything regarded as a source of danger, or towards a person regarded as able to inflict injury or punishment.” Understood in this sense “fear” merely denotes the refugee’s expectation of impending persecution. This understanding is consistent with a common usage of “fear” in standard English…. It is also noteworthy that the verb “craindre”, as used in the equally authoritative French language version of the Refugee Convention, like “fear” - its English language equivalent – can be interpreted either in the sense of expectation or trepidation.”
This summary of Professor Hathaway’s intellectually rigorous and highly cogent arguments for rejecting the notion of subjective fear could have presaged an argument that the Tribunal misunderstood the law that it had to apply in this case. However, as the matter was not raised before me, presumably because the grounds of rejection of a subjective fear could only be referable to two of the three incidents, this is an argument which will doubtless be put in another case on another day.
A cogent argument against interpreting the Convention as requiring an element of subjective fear is the difficulty of dealing with children or those that suffer from intellectual disabilities. Counsel for the applicant referred to Chen Shi Hai v Minister (2000) 201 CLR 293 which involved a child. The Court said at paragraph 4:
No point has been taken that, by reason of his age and circumstances, the appellant, himself, lacks the fear necessary to bring him within the Convention definition of "refugee". Rather, it is accepted that his parents' fears on his behalf are sufficient. Nor is it in issue that those fears are well founded. In this regard, there is an unchallenged finding by the Tribunal that it is likely that, in China, the appellant will suffer serious disadvantage amounting to persecution. What is in issue is whether, in terms of the Convention, that persecution is "for reasons of ... membership of a particular social group." To understand how that question arises, it is necessary to say something of the appellant's family background.
Whilst the applicant sought to rely upon Chen's case as authority for the proposition that a subjective element was not always required, it appears to me that the High Court was simply recounting the agreement of the parties and not necessarily making comments to endorse such a view. It appears to me that this is a question that remains open to be directly determined by the High Court.
In Adan v Secretary of State for the Home Department [1999] 1 AC 307 the House of Lords said:
The use of the term "fear" was intended to emphasis the forward-looking nature of the test, not to grant refugee status in an assessment of the claimant's state of mind.
The point being made by Hathaway in the article is that:
…there is increasing recognition that the bipartite approach poses protection risks that are incompatible with the object and purpose of the Refugee Convention. Most significantly [it] can lead to denial of refugee status to at-risk applicants who either are not fearful, or whose trepidation is not identified as such by decision-makers. This concern arises most obviously in the assessment of refugee claims made by children and mentally disabled persons, who may be unable to experience or to articulate the requisite emotional state. Most courts have been sensitive to such cases, and have exempted children and mentally disabled persons from the duty to demonstrate trepidation as a precondition for refugee status. (at p512)
There are numerous authorities of the Federal and High Courts adopting a bipartite approach (the respondent, in her outline, set out: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 570, Minister for Immigration & Ethnic Affairs v Eshetu (1999) 197 CLR 611 at 658, Minister for Immigration & Ethnic Affairs, Re; Ex parte: Miah (2001) 206 CLR 57 at [62], [70] per Gaudron J, Minister for Immigration & Ethnic Affairs v Khawar (2002) 210 CLR 1 at [61] per McHugh & Gummow JJ, Minister for Immigration & Ethnic Affairs v Respondents S152/03 (2004) 205 ALR 487 at [93], [101] per Kirby J, Thuraisamy v Minister for Immigration & Ethnic Affairs [1999] FCA 1632 at [7]-[8] per Wilcox, Einfeld & Tamberlin JJ, Suleiman v Minister for Immigration & Ethnic Affairs [2001] FCA 752 at [15] per Lee, Hill & Emmett JJ, Gomez v Minister for Immigration & Ethnic Affairs [2002] FCFCA 105 at [24] per Hill, O’Laughlin & Tamberlin JJ, SDAQ v Minister for Immigration & Ethnic Affairs [2003] FCFCA 120 at [12] per Cooper J and at [28] per Finkelstein J.
Whilst there is much to be said for the proposition that the subjective element is not strictly necessary, but rather relevant in determining whether the objective test is fulfilled in the circumstances of the particular case, I am bound by the existing authorities on the issue.
I therefore find that the applicant has not shown a judicially reviewable error in this regard.
Ground 2
The tribunal specifically found that difficulties in marrying as set out in this case did not amount to persecution within the meaning of the legislation. This is not surprising given the requirements of section 91r that:
91r Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1a(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
...
The applicant argues that the tribunal ought to have first identified that the denial of the right to marry within Israel was discriminatory, and then whether it was serious enough to amount to persecution within the meaning of the convention and legislation. In this regard the applicant argued that the categories set out in section 91r(2) are inclusive, not exhaustive.
The tribunal has clearly come to the view that the impediments upon marriage are not of sufficient seriousness to amount to ‘serious harm’ within the meaning of the Act. Whilst there is not a lengthy discussion of this topic, the tribunal:
a)clearly identified the relevant law at the start of its decision.
b)identified the relevant circumstances (albeit in the alternative); and
c)reached a conclusion as to whether the particular circumstances satisfied the legal criteria.
I am not satisfied that the facts and circumstances of this issue were such that one could infer an error on the part of the tribunal from the economy of its reasons.
In the circumstances the applicant has not established a basis for judicial review under this ground.
Conclusions
The tribunal did not accept that the applicant was at risk of ‘persecution’ within the meaning of section 91r of the Act. I have not found a reviewable error in the tribunal’s reasoning in this regard. As a result the applicant was bound to fail before the tribunal despite the error identified above. I therefore find that it is not appropriate to issue constitutional writs in this case.
I therefore refuse the applicant’s application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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